BAXTER & MAPLE

[2012] FamCA 1124

FAMILY COURT OF AUSTRALIA

BAXTER & MAPLE [2012] FamCA 1124

FAMILY LAW – DE FACTO RELATIONSHIPS – declaration
FAMILY LAW – ORDERS – ex parte

Family Law Act 1975 (Cth)

APPLICANT: Mr Baxter

RESPONDENT: Ms Maple

FILE NUMBER: MLC 6303 of 2012

DATE DELIVERED: 20 December 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 20 December 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Snyder

SOLICITOR FOR THE APPLICANT: Susan Snyder

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: N/A

BY CONSENT IT IS ORDERED

1.   That there be a declaration that the Applicant and the Respondent lived in a de facto relationship from late October 2005 until November 2010 and from February 2011 to May 2011.

2.   That the Respondent sign all documents and do all such things as may be necessary to transfer to the Applicant at the expense of the Applicant her interest in the property at A Street, Suburb B in the State of Victoria (‘the Suburb B property’) and that upon such transfer, the Applicant indemnify the Respondent and keep the Respondent indemnified in respect of all liability relating to any mortgage secured over the said Suburb B property and all rates, taxes and like outgoings relating to the said Suburb B property.

3.   That the Respondent pay all monies due and owing by her to First Credit Union (New Zealand) being one half of the debt owed by the Applicant and the Respondent as of February 2011 and indemnify the Applicant in respect of her share of the said debt.

4.   That in the event that the Respondent fails or neglects to sign the Transfer referred to in paragraph 1 pursuant to Section 106 of the Family Law Act a Registrar of this Court sign all such documents to effect the Transfer in place of the Respondent.

5.   That each of the Applicant and Respondent otherwise retain for their own benefit the superannuation entitlements, motor vehicles and bank accounts and other possessions including chattels presently in their possession or control and each of the Applicant and the Respondent be otherwise responsible for all liabilities, including credit card debts, loans and liabilities of any other nature in their name as of this date.

6.   That the Application filed 12 July 2012 be otherwise dismissed and removed from the list of cases awaiting hearing.

AND IT IS FURTHER ORDERED IN CHAMBERS

7.   That as soon as practicable the solicitor for the applicant serve a sealed copy of this order on the respondent by email.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Baxter & Maple has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6303 of 2012

Mr Baxter

Applicant

And

Ms Maple

Respondent

REASONS FOR JUDGMENT

1. I have before me today the application for property settlement filed 12 July 2012.  When the de facto husband was unable to serve or locate the de facto wife for the purposes of services of documents upon her an order was made on 9 October 2012 dispensing with service on the basis of substituted service which required the applicant to serve a sealed copy of the order made 9 October, a copy of the Initiating Application filed 4 July 2012, the Financial Statement sworn 21 June 2012 and the affidavit of Mr Baxter sworn 9 October 2012 and by his solicitor sworn on the same day. 

2. I have an affidavit sworn by Mrs Snyder on 13 December 2012 in which she deposes that pursuant to paragraph 3 of the orders made 9 October 2012 she caused a letter to be forwarded to Wightons Lawyers, …, Geelong, enclosing the documents as required by that order by way of substituted service.  In response to the letter enclosing the documents Wightons Lawyers forwarded a letter to the applicant’s solicitor which is clearly in error dated 16 March 2012, but refers to her letter of 12 October 2012 in which they confirm that they:

   No longer act on behalf of [Ms Maple].  However, we have contacted her and have made her aware of these documents.

3. The husband’s solicitor also deposes to having been telephoned directly by the respondent on 14 November 2012 in which she advised that she had been contacted by Wightons Lawyers in relation to the documents forwarded to them and the application issued by the applicant, and providing an email address to which those documents could be forwarded.  On 16 November 2012 the applicant’s solicitor forwarded the documents to Ms Maple by email.  I also note that the father deposes that when the wife was represented by Wightons solicitors there was correspondence passing between his solicitors and the wife’s solicitors, as a result of which she organised a valuation of the former matrimonial home and that after that valuation was completed, no further communication occurred between his solicitors and the wife’s solicitors.

4. Ms Maple has been called and does not appear today.  The husband in this matter was born in 1966 and is now 44 years of age.  The respondent wife was born in 1962 and is 50 years of age.  Both the applicant and the respondent were born in New Zealand and they commenced their relationship in August 2005 in New Zealand and separated in Australia in November 2010, reconciling in February 2011, but separating on a final basis on the weekend of 1 May 2011.  I am satisfied that they were living in a de facto relationship as provided by the Family Law Act 1975.  The financial background to the matter is that the husband deposes that at the commencement of their relationship he had about $100,000 in savings.  The respondent wife had no assets at all.

5. During the relationship they purchased a farm together in New Zealand for approximately $410,000.  They used part of his savings of $100,000 and the balance of approximately $340,000 was borrowed from First Credit Union in New Zealand.  The parties lived on the farm until they decided to move to Australia in about January 2008.  They both obtained employment in Melbourne and retained the New Zealand property, continuing to make payments on that property as well as purchasing the property at A Street, Suburb B, some time in 2009. 

6. In or about February 2010 the wife lost her job and did not work for approximately five months.  As the parties could not afford to continue making payments on both properties, first, they borrowed approximately $10,000 from the applicant’s adult son and they attempted to sell the property in New Zealand.  The property sold at a loss as a result of which there was an outstanding debt to First Credit Union in New Zealand of approximately $55,000.  The parties reached an agreement with the credit union that they would each be responsible for one half of the debt which would not attract interest as long as regular payments of $50 per week were made by each of them.  The husband has been paying his share of the debt since that time, but to the best of his knowledge the wife has not made any payments since February 2012.

7. At that time the debt was about $49,000, however, as a direct result of the wife’s failure to make the payments, interest has been added to the outstanding loan and that debt now has a balance of approximately $61,000.  He has continued to make payments both on his behalf and on the wife’s behalf since that time.  The property at A Street, Suburb B, was purchased in the joint names of the parties for approximately $237,000.  The parties borrowed that entire purchase price.  At the time of separation the parties owed the Commonwealth Bank approximately $242,000 which, since separation, the husband has reduced to approximately $228,000.  The property has a current equity of approximately $22,000.  The husband has made all payments of that mortgage since separation. 

8. The husband has in addition paid mortgage arrears of approximately $4000, $550 to a firm known as C Pty Ltd, approximately $1900 to D Credit and approximately $1300 to Westpac New Zealand.  All of these debts were joint liabilities.

9. I am satisfied that the wife is aware of the proceedings, that she has had an opportunity to do but does intend to take any part in these proceedings. In those circumstances the matter is unopposed.  I am satisfied in the circumstances that the orders proposed by the husband are in all the circumstances just and equitable.

10. I will make orders in accordance with paragraph 2, 3, 4 and 5 of the minute of orders submitted by the husband and I will otherwise dismiss the application filed 12 July 2012 and remove it from the list of cases awaiting hearing.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 20 December 2012.

Associate: 

Date:  31 January 2013